Will v. Northwestern University
| Decision Date | 14 December 2007 |
| Docket Number | No. 1-06-1642.,No. 1-06-1566.,No. 1-06-1643.,1-06-1566.,1-06-1642.,1-06-1643. |
| Citation | 378 Ill. App. 3d 280,881 N.E.2d 481 |
| Court | United States Appellate Court of Illinois |
| Parties | Linda A. WILL and George Wheeler, Jr., as Independent Coadministrators of the Estate of Rashidi Wheeler, Deceased, Plaintiffs-Appellants and Cross-Appellees, v. NORTHWESTERN UNIVERSITY, Charles Taylor, Randall Walker, Jerry Brown, Terrence ("Tory") Aggeler, Larry Lilja, Thomas Christian, Justin Chabot, Michael Rose, Mark Gardner, Howard Sweeney, Next Proteins, Inc., f/k/a Next Nutrition, Inc., d/b/a Next Proteins International, Ultimate Energy Company, The Ultimate Orange Energy Company, LLC, Cytodyne Technologies, Inc., Phoenix Laboratories, Inc., and General Nutrition Corporation, d/b/a General Nutrition Companies, Inc., a wholly owned subsidiary of Royal Numico NV, Defendants-Appellees and Cross-Appellants (Northwestern University, Charles Taylor, Randall Walker, Jerry Brown, Terrence ("Tory") Aggeler, Larry Lilja, Thomas Christian, Justin. Chabot, and Michael Rose, Third-Party Plaintiffs-Appellees; Next Proteins, Inc., f/k/a Next Nutrition, Inc., d/b/a Next Proteins International, Ultimate Energy Company, The Ultimate Orange Energy Company, LLC, Cytodyne Technologies, Inc., Phoenix Laboratories, Inc., and General Nutrition Corporation, d/b/a General Nutrition Companies, Inc., a wholly owned subsidiary of Royal Numico NV, Third-Party Defendants-Appellees; Cochran, Cherry, Givens, Smith & Montgomery, LLC, Petitioner-Appellee; Linda Will, Individually and as Coadministrator of the Estate of Rashidi Wheeler, Deceased, George Wheeler, III, Individually, and Hershel Will, Individually, Respondents-Appellants). |
Novoselsky Law Offices, David A. Novoselsky and Leslie J. Rosen, Chicago, for Respondents-Appellants.
Corboy & Demetrios Thomas A. Demetrio, Chicago; Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C., Michael T. Reagan, Ottawa, for Plaintiff-Appellant and Cross-Appellee George Wheeler, Jr.
Sidley Austin LLP, Eugene A. Schoon, Constantine L. Trela, Jr., and James R.M. Hemmings, Chicago, for Defendants-Appellees and Cross-Appellants.
Michael W. Rathsack, Chicago (James D. Montgomery, James D. Montgomery, Jr., and Michael W. Rathsack, of counsel), for Petitioner-Appellee.
The instant cause involves multiple actions.
Plaintiffs-appellants and cross-appellees Linda A. Will (Linda) and George Wheeler, Jr. (George Jr.), as coadministrators of the estate of their deceased son, Rashidi Wheeler (Rashidi), filed a wrongful death and survival action against defendants-appellees and cross-appellants Northwestern University and several of its employees, including Charles Taylor, Randall Walker, Jerry Brown, Terrence Aggeler, Larry Lilja, Thomas Christian, Justin Chabot, and Michael Rose (Northwestern).1 Following years of litigation which included the appointment of a guardian ad litem, a bankruptcy proceeding, a mediation, a demand for settlement and an objection to this settlement by Linda, the trial court approved settlement in the amount of $16 million. Linda, both individually and in her capacity as coadministrator, and George Wheeler III (George III) and Hershel Will (Hershel), members of the estate of Rashidi Wheeler (the Estate) and in their individual capacities, appeal, contending that the trial court did not have the authority to direct the acceptance of the settlement and execute documents over coadministrator Linda's objection. Having assumed that liability has been resolved in their favor and against Northwestern, they ask that we vacate the settlement and remand the matter for a trial on the sole issue of damages.
For its part, Northwestern has filed a brief on appeal in opposition to that of Linda, George III and Hershel, contending that (1) they have no standing to challenge the settlement; (2) the trial court did have the authority to accept the settlement in the name of the Estate; and (3) even if the court improperly accept ed the settlement, the appropriate remedy is not a trial solely on damages but, rather, a remand for trial on all issues, including liability. Northwestern, which has already paid out the settlement sum into an escrow account, has also filed a cross-appeal, contending that the trial court erred in failing to include certain express language in its judgment regarding the return of the settlement proceeds to it if the settlement is set aside. Thus, Northwestern asks that we dismiss the instant appeal for lack of standing or, alternatively, that we affirm the judgment of the trial court; Northwestern further asks that, were we to reverse the judgment, we remand with instructions to order the return of the settlement proceeds, with accrued interest, to it.
George Jr., in his capacity as coadministrator, has filed an appearance and brief as well. Like Northwestern, he too contends that Linda, George III and Hershel do not have standing to raise the instant appeal and that the trial court had the authority to direct that the settlement be accepted and properly exercised that authority. Without addressing Northwestern's cross-appeal regarding the return of settlement proceeds if the settlement is set aside, George Jr. asks that we affirm the settlement and judgment of the trial court.
Finally, petitioner-appellee, the law firm of Cochran, Cherry, Givens, Smith & Montgomery, LLC (Cochran), which represented Linda as coadministrator of the Estate,2 has filed an appearance and brief in the instant appeal. The trial court's settlement and judgment ordered the payment of one-third of the portion received by Linda to Cochran, which she had discharged shortly before the settlement was accepted and ordered. Respondents-appellants Linda, George III and Hershel have devoted a portion of their brief on appeal to challenging this ruling, contending that the trial court abused its discretion in awarding the one-third fee to Cochran. While they ask that we vacate the fee award or, alternatively, that we reverse it and remand for an evidentiary hearing on the sufficiency of the fee petition, Cochran maintains that the trial court properly exercised its discretion and asks that we affirm the fee award.
For the following reasons, we dismiss the appeal with respect to Linda, George III and Hershel in their individual capacities for lack of standing; we affirm the settlement and judgment of the trial court with respect to Linda in her capacity as coadministrator, thereby rendering Northwestern's cross-appeal moot; and we affirm the trial court's one-third fee award to Cochran.
On August 3, 2001, Rashidi Wheeler, a student and football player at Northwestern University, died following a preseason conditioning drill during football practice. Rashidi had never married and did not have any children at the time of his death; his mother and father, Linda and George Jr.,3 were appointed coadministrators of his estate. On August 8, 2001, Linda signed a contingency fee contract with Cochran, retaining that firm to represent her and agreeing to pay it one-third of the gross amount of whatever she recovered for the death of her son.
Linda and George Jr., in their capacities as coadministrators, filed an amended complaint on behalf of Rashidi's estate and his next-of-kin against Northwestern, alleging survival and wrongful death claims.4 At this time, and throughout the entire litigation, Rashidi's estate consisted of six heirs: three adults—Linda, George Jr., George III (Rashidi's brother), and three minor children, each of whom was a half-brother of Rashidi—Hershel, Matthew Wheeler and Daniel Wheeler. None of these people filed any individual claim against Northwestern or any other defendant. Northwestern denied liability in the death of Rashidi and filed claims against multiple third-party defendants, who also denied liability.
In the meantime, Linda discharged Cochran and retained another firm to represent her. However, within four months, she discharged that firm and again retained Cochran.
The cause proceeded through four years of discovery, which saw Cochran taking some 24 depositions, the removal of one defendant to bankruptcy court in New Jersey, and remand to the circuit court of Cook County. Ultimately, the cause culminated in an extensive mediation before Cook County Circuit Court Chief Judge Donald O'Connell. In March 2005, the parties reached an understanding that if Linda and George Jr. as coadministrators made a demand of $16 million in exchange for a settlement of all claims, Northwestern would accept the demand and pay this amount. While Corboy and Cochran recommended that the coadministrators make the demand and while George Jr. filed an affidavit stating that he wanted to make the demand, Linda objected. At this point, Linda again discharged Cochran and refused to make the demand upon Northwestern.
Due to this, and because three of the Estate's heirs were minors, the trial court appointed a guardian ad litem to represent Hershel, Matthew Wheeler and Daniel Wheeler, and ordered' him to investigate the proposed settlement to determine if it was appropriate. In July 2005, the guardian ad litem submitted his report to the trial court, finding the proposed settlement to be fair and recommending that it be accepted, as this was in the best interests of the minor heirs. In the report, the guardian concluded that not making the demand to Northwestern would be "waste and mismanagement of the only significant asset of the Estate," that it would be "reckless to refuse to make such demand and to subject all of the beneficiaries of the Estate to the risks of trial," and that the "rights of the Minors to recovery in a substantial amount will be endangered by a refusal to make such a demand." Noting that Linda was seeking nonfinancial terms in a settlement, such as the erection of a memorial to Rashidi and counseling for his collegiate peers, the...
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